Culhane: Pawlenty throws gays under the bus

OK, maybe it’s just because I’ve taught Torts for so long, but an apparently minor development out of Minnesota really has me irked.

First, consider these two stories:

(1) A California woman is mauled to death by vicious dogs, under circumstances so horrific that the owner is convicted of second-degree murder. Her surviving same-sex partner sues under the state’s wrongful death law. Under a strict reading of the statute, she would lose because she doesn’t have “standing” to sue – unlike the deceased woman’s mother, who does have such standing, even though her actual financial and emotional losses are much less. Yet the court allows the claim to proceed anyway, and she collects a large settlement.

(2) A New York couple enters into a civil union in Vermont. Later, one of the men dies because of alleged medical malpractice. Instead of contesting the merits of the suit, the hospital moves to dismiss the claim because the surviving “spouse” isn’t a spouse at all – the civil union doesn’t count. A trial judge allows the case to proceed, but the appellate court holds that the case should have been dismissed.

Since those cases were decided, the laws in both New York and California have been changed to allow “registered” same-sex couples to bring their claims – not necessarily to recover, simply to have the right to try to establish their losses.

These developments had no effect on Minnesota Governor Tim Pawlenty, who has just vetoed a bill that would have given surviving members of same-sex couples the right to make decisions about the remains of their partners and the right to sue in wrongful death for negligent acts that resulted in their partners’ demise.

When Pawlenty gave as the reason for his veto that the law was unnecessary because same-sex couples can protect themselves by executing living wills, he was flat wrong – at least as to the wrongful death part of the law.

Some quick background on wrongful death law (more than you’d probably ever want to know): These state laws are designed to provide the survivor with what he or she would have been expected to receive from the deceased: In most states, including Minnesota, damages can include some of the income that the deceased would have been expected to earn (whatever the survivor could have been expected to receive), as well as the loss of emotional support and companionship.

So what’s the problem for same-sex couples? Unlike most of tort law, suits for wrongful death are based not on judge-made (common) law, but on statutes that clearly define who’s eligible to recover. And most of the statutes continue to restrict recovery to certain named classes of survivors: In Minnesota, which is fairly typical in this regard, that’s limited to spouses and “next of kin.”

So why and how did judges in California and New York hold to the contrary? By looking to the purpose of the law, which is to compensate based on real loss, and to make sure that bad conduct is deterred. Since the strict categorical requirements of wrongful death laws frustrate those purposes, judges are tempted to “get creative.”

Given the purposes of the law and what the California judge called the “insurmountable obstacle” that gay and lesbian couples face in these cases – you can’t contract around a statute – why the veto?

Here’s a thought: Pawlenty wants to be President, and has to burnish his social conservative credentials first. So everything becomes a threat, suddenly, to “traditional marriage” – however tangential the message on marriage, and however real the costs to actual people.

Here are a few questions I’d like to ask Gov. Pawlenty.. I’m going to send them to his office (unless a reader living in Minnesota would like to!), but I don’t expect an answer.

“Governor, under the law as it now stands, a murderer would owe nothing to the surviving member of a same-sex couple, even if the deceased provided most of the support for that survivor. Can you explain and justify the policy that permits this result?”

“The result of these statutes is so unfair that judges in other states have ignored their language and looked to the purpose of the law in allowing these claims. Why not simply amend the law to better reflect the compensatory and deterrent purposes of wrongful death law?

“What advice would you give to same-sex couples to protect themselves against this result?

“If the same-sex couple had adopted a child, that child’s future prospects could be negatively and even dramatically affected by her surviving parent’s inability to recover for wrongful death. Why should that child be differently affected than the child of an otherwise identical opposite-sex couple?

“You described the law as “divisive.” Can you explain why this law is any more divisive than the one you signed last year, that prevented jointly owned homes from being sold to pay medical bills when one partner dies?”

Politicians in the Pawlenty mode continue to throw us under both the express and the local bus: Marriage and the puny but necessary baby steps that are necessitated by intransigence on full equality. We must hold him accountable, now and if he seeks the Presidency.

John Culhane is Professor of Law and Director of the Health Law Institute at Widener University School of Law in Wilmington, Delaware. He blogs about the role of law in everyday life, and about a bunch of other things (LGBT rights, public health, sports, pop culture, music philosophy and lots of personal stuff) at: http://wordinedgewise.org. A fuller bio can be found here. He can be reached via email at: johnculhane@comcast.net.

Profile: Gay, Jewish and HIV positive

High court: No cameras at gay marriage trial

(San Francisco) The Supreme Court on Wednesday indefinitely blocked cameras from covering the high-profile federal court trial on the constitutionality of California’s ban on same-sex marriage.

Now in its third day, the trial in federal court in San Francisco concerns Proposition 8, the voter-approved ban on gay marriage in the state.

The …

History Is on My Side, Says Calif. Justice Who Voted Against Gay-Marriage Ban

Carlos Moreno stood alone in May when he dissented from the decision upholding Proposition 8. But the California Supreme Court justice says history will prove him right — that denying gays and lesbians the right to marry is illegal discrimination.

“Someday at some point my dissent will be the majority view in California,” he said during an interview in his San Francisco chambers late Wednesday. “I think that’s where the law is headed.”

“Equal protection is either equal or it’s not,” he added. “It’s not the kind of thing you can chip away at.”

Moreno, one of four justices to back same-sex marriage last year and the sole vote against Prop 8 this year, took time to talk to The Recorder about his votes, his brief moment on the Obama administration’s short list for the nation’s highest court, and U.S. Supreme Court nominee Sonia Sotomayor’s controversial “wise Latina” comment.

Moreno’s dissent in Strauss v. Horton, 46 Cal.4th 364, came at a touchy time for him. He had been contacted by the Obama administration a week earlier as a possible replacement for retiring U.S. Supreme Court Justice David Souter. Since President Obama has officially stated his opposition to same-sex marriage, it could be assumed Moreno’s position on marriage and Prop 8 might be troublesome.

But, Moreno said, Obama’s vetters didn’t ask him how his Prop 8 vote — which wasn’t yet public — would go.

“They just asked if there were any high-profile cases — past or present, including on the trial court — that would be the kind of case that would draw attention.”

See History Is on My Side, Says Calif. Justice Who Voted Against Gay …

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Another front for fairness

AT A HEARING at the State House last week, supporters of a bill to ban discrimination on the basis of gender identity and expression outlined the myriad barriers that confront transgender people – those who are born male but live as females, or vice versa. Unlike those whose religions or sexual orientations expose them to discrimination, transgendered people might not be able to avoid the issue when applying for jobs, apartments, or loans. The truth may become evident from a check on a Social Security number or a search of credit reports.

Transgender advocates aren’t looking for sympathy. The goal of the legislation, introduced by Representative Carl Sciortino, is to give transgender residents of Massachusetts space to live without discrimination or violence. The bill responds sensibly to a real problem, and deserves to pass.

Transgender people don’t make the transition lightly; many, though not all, undergo gender-reassignment surgery. The case of Dana Zircher, profiled recently by the Globe’s Bella English, underscores the difficulty of the process, even when individuals have supportive families and employers. Zircher, a software designer and a parent, has undergone a divorce, surgery, and 350 hours of electrolysis.

Instead of addressing the complexities of actual people’s lives, though, opponents are trying to undermine Sciortino’s legislation by calling it a “Bathroom Bill.’’ The difference between a transgender woman and a man who wants to infiltrate a ladies’ room is perfectly obvious, at least to anyone who is not deliberately obfuscating the issue. The difference would surely be obvious to police officers and judges. Thirteen other states, including Vermont, Maine, and Rhode Island, and dozens of cities, including Boston and Cambridge, already forbid discrimination against transgendered people – and public washrooms are as safe as ever.

See Another front for fairness

Boston Globe

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Margaret Cho: First Woman to Appear in Gay Adult Mag

Comedian Margaret Cho has been a pop culture pioneer for many years. She has raised the profile of Asian-Americans and women in entertainment, and has been a tireless campaigner for gay rights.

Tonight, Cho is guesting on E!’s Chelsea Lately to spread the word about her latest first: premier female cover model for the newest issue of gay adult magazine Unzipped. See video from the photo shoot below.

See Margaret Cho: First Woman to Appear in Gay Adult Mag Gay Wired

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Congressional Race in California Draws a High-Profile Cast

WALNUT CREEK, Calif. — With competitive races in Congress a rarity in California, the unexpected availability of a seat here has set off a sudden and furious chase, with at least a dozen candidates and a mélange of political styles and personal storylines.

California’s 10th Congressional District, a sprawling inkblot made up of a collection of suburbs east of San Francisco, has been represented since 1997 by Ellen O. Tauscher, a Democrat who resigned after being confirmed on June 25 to a top post in the State Department.

The field to succeed her includes the lieutenant governor, two state lawmakers, a decorated Iraqi war veteran who is openly gay and a former newspaper reporter. And that does not even include the Republican candidates in this Democratic-leaning district.

The crush of hopefuls, said Henry Brady, a professor and dean of the public policy school at University of California, Berkeley, might stem in part from the diversity of the district, which extends from the liberal Bay Area to more conservative territory inland.

“These seats don’t come available very much, and the reason is very simple: geography,” Dr. Brady said. “The Democrats are primarily on the coast, and the Republicans are in the Central Valley and the mountains, so it’s very hard to build a competitive district. But this has the potential to be one.”

The lieutenant governor, John Garamendi, is considered the early favorite to replace Ms. Tauscher. Mr. Garamendi, a Democrat who had considered running for governor next year, said he opted instead for Congress in large part because of the abbreviated campaign. A primary, followed by a special election, to complete Ms. Tauscher’s term must be held within 126 days of the governor setting the date. Gov. Arnold Schwarzenegger issued a proclamation Friday declaring Nov. 3 the date for the special election.

“I thought, How am I going to spend two valuable years of my life?” said Mr. Garamendi, 64, who previously served as the deputy secretary of interior in the Clinton administration as well as the California’s first elected insurance commissioner. “Am I going spend two years dialing for dollars, or am I going to spend four months out ringing doorbells and campaigning person to person and the other 20 months working on issues?”

Mr. Garamendi’s principal challengers among the Democrats, some polls show, are State Senator Mark James DeSaulnier and Assemblywoman Joan Buchanan. Both were elected to their current posts last fall.

Mr. DeSaulnier, 57, is a former mayor, city councilman and assemblyman, who says his career comes in spite a devastating personal experience with politics: a scandal involving his father, Judge Edward J. DeSaulnier Jr., who was removed from the bench of the Massachusetts Superior Court and disbarred in 1972 after being accused of rigging a sentence for the Mafia. The older Mr. DeSaulnier was never charged with a crime but was disgraced nonetheless and committed suicide in 1989.

“I’ve been very affected by my father’s journey,” said Mr. DeSaulnier, who worked as a restaurateur before running for office. “And I’ve loved my public life.”

The rest of the Democratic field is not as well known, though one candidate has attracted some national attention: Anthony Woods, a 28-year-old graduate of the United States Military Academy at West Point and a veteran of the Iraq war who was awarded the Bronze Star for two tours of duty. Shortly after his return from combat, while at Harvard working toward his master’s degree, Captain Woods told military superiors that he is gay, resulting in an honorable discharge.

While considered a long shot for the Congressional seat, Mr. Woods would be the first openly gay black man in Congress, though he has been careful on the campaign trail to trumpet more than his sexuality.

“The first thing I talk to voters about is their priorities, universal health care and economic security,” he said. “I’m not hiding who I am, but they’re just as interested in talking about the issues as I am.”

See Congressional Race in California Draws a High-Profile Cast

New York Times

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Gay veteran’s military dismissal puts spotlight on California congressional race

WASHINGTON – Anthony Woods says he grew up without health insurance, struggled to get an education and fought in Iraq, a war he didn’t believe in.

Then he got kicked out of the military for violating its “Don’t Ask, Don’t Tell” policy after telling his commanding officer he was gay.

Woods, a 28-year-old graduate of West Point, figures he has the proper anti-establishment credentials to win an open seat in California’s 10th Congressional District. He’s proud of his lack of political experience, saying experienced politicians haven’t done much good in either Sacramento or Washington.

“If we keep sending experienced career politicians to D.C., nothing’s going to change,” Woods said in an interview.

Woods may be a long shot in the race to replace the retiring Democratic Rep. Ellen Tauscher in the East Bay seat, but his presence assures it will be a high-profile affair. It’s already resulting in national attention.

Woods, a Democrat, is less well-known than his challengers, but his team is banking on the candidate’s compelling life story and his status as an outsider to put him over the top in a splintered field.

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Gays Step Up Efforts to Reverse Gay-as-Godless Stereotype

A groundbreaking survey about the faith lives of gay Americans that the Barna Group put out last week got surprisingly little attention. In my latest God & Country column for U.S. News Weekly, I tied the Barna survey’s fascinating portrait of gay religious life to the gay rights movement’s recent efforts to ratchet up outreach and messaging. Much of the work is aimed at reversing the gay-as-Godless stereotype.

Here’s the top:

Though he was raised in the United Methodist Church, Harry Knox knew he couldn’t become a minister in his denomination because it doesn’t ordain openly gay members. He enrolled in a seminary of the more liberal United Church of Christ but was eventually denied ordination anyway. “My whole career as an activist is an accidental ministry,” says Knox, 48, who now works at the Human Rights Campaign, the nation’s largest gay rights group. “I would rather be a local pastor.”

Instead, since 2005, Knox has built HRC’s “religion and faith program,” which works to combat the stereotype of the gay, lesbian, bisexual, and transgender community as antireligious. “For far too long, LGBT organizations did not put religious allies at the forefront of our efforts,” Knox says. “That’s a mistake we’re making less often now.”

Those religious allies may be more plentiful than most Americans think. A Barna Group survey out last week shows that most gay Americans lead pretty robust faith lives. While 72 percent of straight American adults describe their faith as “very important” in their lives, so do 60 percent of gays and lesbians. Almost as many, 58 percent, say they’ve made a personal and ongoing commitment to Jesus Christ.

And though they are much less likely than straights to share the beliefs of born-again Christians—which comes as no surprise, since most churches in the born-again tradition condemn homosexuality—the Barna survey found that 27 percent of gays do hold those beliefs. “Many in the Christian community assume there’s this significant gap between heterosexuals and homosexuals in terms of faith beliefs and activities,” says George Barna, the country’s top pollster on religious issues, who supervised the survey. “While there are statistically significant differences, it’s the narrow size of the gap that’s most surprising.”

The poll unleashed a torrent of hate mail, mostly from believers furious with Barna’s conclusion: that many gays are Bible-believing Christians. But more and more gay rights organizations are joining HRC in stepping up efforts to highlight the faith beliefs of many gay Americans, largely through religious outreach programs. And some religious traditions and denominations are taking steps to welcome gay and lesbian members.

Gay rights activists say that the 2004 election, when voters in 11 states passed gay marriage bans that were heavily promoted through churches, was a wake-up call. To help counter the image of the gay marriage battle as a fight between gays and religious Americans, HRC, the National Gay and Lesbian Task Force, and other national gay rights groups quickly hired religious outreach staff.

Read the full story here.

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U.S. News & World Report

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Federal Judge Stresses Trial Record on Calif. Gay-Marriage Ban

Whatever Chief U.S. District Judge Vaughn Walker winds up deciding on Proposition 8, it’s clear he wants an airtight trial record to support it.

Holding his first hearing Thursday on the controversial measure that outlawed same-sex marriage, Walker repeatedly stressed the importance of establishing a record that will stand the test of time.

He told a packed courtroom that he was “reasonably sure” that the challenge launched by two high-profile litigators is “only touching down in this court” and merely a “prelude” for things to come.

“How we do things here,” Walker said, “is more important than what we do.”

He noted that other courts have rendered decisions on same-sex marriage without holding full trials, which he suggested was a “problem.”

Perry v. Schwarzenegger, 09-CV-2292, was filed in May by Theodore Olson, who represented George W. Bush in the landmark Bush v. Gore case, and David Boies, who represented Al Gore. Boies wasn’t present on Thursday. The suit attacks Prop 8 on equal protection and due process grounds.

Walker had already issued a tentative order allowing Prop 8 proponents to intervene and denying a preliminary injunction (pdf). He stood by both orders during Thursday’s 50-minute session.

Olson, a partner in Gibson, Dunn & Crutcher’s Washington, D.C., office who has argued before the U.S. Supreme Court 55 times, nonetheless made a fleeting attempt to persuade Walker to change his mind on the injunction.

“Every day that Prop 8 is enforced perpetuates a tragic injustice” on gays and lesbians, he argued, saying it “brands” them as “second-class citizens, unworthy and different.”

“The Supreme Court,” Olson argued, “has held again and again and again that the right to marry is the most important relationship in life.”

Representing the Prop 8 proponents, Washington attorney Charles Cooper, who was a top Justice Department lawyer during the Reagan administration, warned that the lawsuit could “sweep away” not only Prop 8, but the definition of marriage in 43 states and the federal government.

The Cooper & Kirk partner also argued that marriage has by tradition always been the union of a man and a woman, and said that every Supreme Court case that describes marriage has noted that its central purpose is procreation.

See Federal Judge Stresses Trial Record on Calif. Gay-Marriage Ban Above the Law

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